Opinion
Argued February 2, 1983
August 4, 1983.
Peremptory judgment — Appeal — Motion to open judgment.
1. The proper method of challenging a peremptory judgment is to file a motion to open judgment and not to take an appeal from the entering of the judgment, and therefore, an appeal from the entering of a peremptory judgment will be quashed as premature. [158]
Argued February 2, 1983, before President Judge CRUMLISH, JR. and Judges MacPHAIL and DOYLE, sitting as a panel of three.
Appeal, No. 1734 C.D. 1981, from the Order of the Court of Common Pleas of Bradford County in case of Maude Lynn Emerson v. Terrance Butler, et al., No. 78-1914.
Action in mandamus in the Court of Common Pleas of Bradford County seeking interim-care benefits. Partial peremptory judgment granted. WILLIAMS, P.J. Exceptions filed and denied. Defendants appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed.
Jonathan P. Foster, Riffle and Foster, for appellants.
Harold C. Caldwell, Vineski, Brann, Williams and Caldwell, for appellee.
This is an appeal from a Bradford County Common Pleas Court order granting partial peremptory judgment in a mandamus action. We quash the appeal.
The appellants are the director and administrator of the mental health/mental retardation program for Bradford, Sullivan and Tioga Counties.
Peremptory judgment was entered January 7, 1981. The trial court dismissed the appellants' exceptions on June 11, 1981, and an appeal was taken to this Court. However, the docket does not show that a motion to open judgment has ever been filed and ruled upon by the trial court.
Regarding the entering of peremptory judgment in mandamus, Pa. R.C.P. No. 1098 provides in part:
At any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear, but the judgment may be opened upon cause shown.
The rule has been construed to require appellants to proceed by filing a petition to open judgment rather than appealing the entering of the judgment. Hamby v. Stoe, 448 Pa. 483, 295 A.2d 309 (1972); Mertz v. Lakotas, 21 Pa. Commw. 591, 347 A.2d 753 (1975). Consequently, this appeal is premature.
Appeal quashed.
ORDER
The appeal from the order of the Court of Common Pleas of Bradford County, No. 78-1914 Civil Action — Law, dated January 7, 1981, is hereby quashed.